A.N.RAY, J.

(1) THIS is an appeal from the judgment, dated 18/05/1964 of the High Court of Kerala allowing the appeal in part and allowing declaration to the effect that the plaintiffs are next in the line of succession to V. L. Lazar and T. V. John respectively and that they are entitled to claim an appointment as trustees. The High court, however, concluded by saying that such appointment could be made in a properly framed suit under Section 92 of the Code of Civil Procedure. Counsel for the appellants contended that the High court was in error in making the declaration particularly when the High court said that such appointment could be made only in a properly framed suit under Section 92 of the Code.

(2) IN order to appreciate the matters in controversy it is necessary to refer to a few facts and the frame of the suit.

(3) THE plaintiffs filed this suit in 1961 for a declaration that defendants Numbered 4 to 9 were "trespassers" on the trust and that all acts and proceedings of defendants Numbered 1 to 9 done since the resignation of T. V. John and V. L. Lazar irt respect of the administration of the trust are invalid and void ; that the plaintiffs be appointed as trustees ; that defendants Numbered 10 to 11 be declared to be, and to have always been, lawful trustees and for injunction restraining defendants Numbered 4 to 9 from interfering with the trust ; that an enquiry be made into their administration and accounts, recovery of properties and funds misused, wasted) disbursed or appropriate, and that defendants Numbered 1 to 3 be declared to be unfit to continue as trustees.

(4) THERE was a deed of settlement dated 20/12/1953 executed by a Christian T. V. Kochuvareed called "Thattil Kochuvareed Educational and Charitable Trust". Apart from the settlor, V. L. Lazar father of the first plaintiff and T. V. John father of the second plaintiff and defendants numbered 1 to 3, 10 and 11 were trustees. On 27/05/1957 V. L. Lazar resigned from the trusteeship. On 12/03/1960 T.V.John followed suit. The settlor and the rest of the trustees appointed six more trustees being defendants numbered 4 to 9 inclusive. The settlor Kochuvareed -tied on 26/07/1961.

(5) ON 28/11/1961 respondents numbered 1 and 2 namely, John on of V. L, Lazar and Varghese son ofT. V. John the plaintiffs filed suit J. 3. No. 115 of 1961 claiming, inter alia, that the plaintiffs be appointed as trustees.

(6) AT the trial two preliminary issues were framed : Whether the suit was maintainable due to want of compliance with Section 92 of the Code of Civil Procedure and whether the court had jurisdiction to try this suit relating to trust. The trial court came to the conclusion that the suit was within the mischief of non-compliance with the provisions of Section 92 of the Code of Civil Procedure. The trial court on 12/03/1962 dismissed the suit and held that the suit had to be instituted after obtaining sanction under Section 92 of the Code. The plaintiffs filed an appeal. On appeal the High court on 20/08/1962 allowed the appeal in part and set aside the dismissal of the suit in so far as it related to prayer e and remanded the suit to the trial court for trial in respect of that claim.

(7) THE trial court on remand by judgment, dated 23/08/1963 held that the suit as framed was maintainable and the plaintiffs were entitled to be declared as rightful trustees but the second plaintiff would have to exercise rights as trustee only on attaining majority. Prayer e in the plaint was as follows :-

"THAT plaintiffs be appointed to their rightful place as trustees and the second plaintiff being a minor now, bepermitted to exercise his rights and safeguard his interests until he attains majority, through his Next Friend, namely his father."

(8) THE appellants; viz., defendants Numbered 4 to 9 preferred an appeal. The High court on 18 May, 1964 allowed the appeal in part and altered the declaration to